N.J. Constitutional Convention: Vol. 4, Page 354

STATE OF NEW JERSEY CONSTITUTIONAL CONVENTION OF 1947COMMITTEE ON THE JUDICIARYWednesday, July 9, 1947 (Morning session)

when there is a general feeling of unfitness - that someone else, or anyone else would be very much better - but you can't put your finger on a specific act of misconduct. Persons who are in that position, whether judges or other public officers, should be able, despite those circumstances, to continue to hold their office.

But where you have a definite term of office, after which there is to be a re-selection or designation or appointment, a judge may be allowed to retire from that office despite the absence of a specific flagrant abuse, when he has not come up to the commonly accepted standard, or acceptable standards of fitness for the office, and there is not necessarily anything that is a reproach to his character which would result in his not being re-appointed.

MR. BROGAN: When he is just a blank?

MR. KAPELSOHN: That's right.

MR. SOMMER: Are you satisfied with the impeachment method of removal when you give a ten-year term, with good behavior? Now the quesiton is, would you be satisfied with the impeachment method of removal, as the only method of removal?

MR. KAPELSOHN: Yes, I think unquestionably that will be important, that the method of removal be difficult and cumbersome.

MR. SOMMER: What would you do in a case in which you have physical and mental disability and a failure to resign? Perhaps that is an unfair question?

MR. KAPELSOHN: That is a hard one to answer, and one which I hadn't considered, but I will try to do it.

MR. SOMMER: Would you do it?

MR. KAPELSOHN: Yes, I will be glad to.

VICE-CHAIRMAN: Would you also consider the issue of whether the top court should have disciplinary power, including the removal power?

MR. KAPELSOHN: Was it felt that a provision on that point need be inserted in the constitutional set-up of the court system?

VICE-CHAIRMAN: Well, you need either that, or leave it to the Legislature, but in the absence of that the traditional method is to make impeachment proceedings the exclusive method of removal, particularly if you have tenure.

In answer to a question by Dean Sommer, you said you would rely entirely on impeachment, whereas I want to point out specifically the probability, without expressing a view personally, that you might provide that the top court would have power to remove lower court judges.

MR. SOMMER: That would be a supplementary process.

VICE-CHAIRMAN: Yes.

MR. SOMMER: Mr. Chairman, don't you think we would be glad to receive a memorandum on that?